A Conditional Use Permit for a Specific Use of Land

A conditional use permit is a zoning exception that allows property owners to use land in such a way that is not typically permitted within the particular zoning district. A CUP provides flexibility within state zoning laws. To get a conditional use permit, write a letter to the local zoning authority in charge of granting the conditional use. Scroll down to learn more about how to get a conditional use permit.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A conditional use permit is a zoning exception that allows the property owner to use his land in a way not otherwise permitted within the particular zoning district.

Though the exact process differs with the specific ordinance requirements, typically the owner presents his argument orally and by petition before the local zoning board, planning commission, or zoning administrator.

The proponent explains the intended non-conforming use for his property, why he should be allowed the exception to the local zoning, and that being granted the conditional use permit will not negatively impact the nearby properties.

What is the Purpose of a Conditional Use Permit?

A conditional use permit is designed to allow flexibility within the zoning laws. A zoning ordinance cannot account for every situation, and exceptions such as the conditional use permit gives the zoning authority discretion to allow uses otherwise prohibited in the specific district for the benefit of the neighborhood.

A conditional use permit is commonly granted to add commercial, education, or religious services to residential zones. Churches, schools, and small or home-based businesses in residential neighborhoods are all products of the conditional use permit which allows an exception to the zoning law.

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How to Apply for a Conditional Use Permit?

The applicant might begin the process of requesting the permit by a call or letter (drafted by an attorney) to the local zoning authority in charge of granting the conditional use. The local zoning official explains the process, including required forms, notices to other property owners, and fees. He also can tell the land owner what kind of resistance the conditional use might stir up, and what to do to prepare for problems.

This information will be helpful as the applicant files his petition before the zoning body. At the public hearing, usually the proponent orally presents his request and answers questions about his conditional use application process before the official makes a decision. The property owner applicant must be prepared, flexible, and available throughout the process.

What is the Difference between a Conditional Use Permit, Rezoning, and a Variance?

Rezoning is the act of changing a property’s use district to a different district with zoning regulations that allow the applicant desired use. Rezoning may be relevant in many different situations. For example, if the city wants to change an unwanted use with a more attractive use, it may start rezoning to a district that doesn’t allow the unwanted use. Furthermore, a property owner may require a rezoning to modify the use district to permit a new use that has become more appropriate due to the development of the city.

According to the requirements for approvals, the rezoning application must comply with the procedures described in the municipality’s zoning ordinance, such as meeting with city staff before application to discuss potential issues and ensuring any application fees are paid.

Moving on to variances, a variance is an administrative, discretionary, limited waiver or modification of a zoning requirement. There are two types of variances: an area variance and a use variance. An area variance is an exception to the district’s regulations that permits the landowner to have the same use of similarly-situated owners who do not suffer the land’s unwanted physical characteristics. A use variance permits a landowner to have land use that is otherwise prohibited in the existing districts. As with all zoning requests, a variance application must comply with the zoning ordinance and comprehensive plan. Some common zoning issues may include regulatory takings, spot-zoning, and “Not in my Backyard” or NIMBY opposition. A real estate professional must know the common zoning terms in order to be able to verify that existing or proposed use of the property is permitted or how it may be permitted.

What is the Procedure for Approvals?

Let’s examine the process for getting approvals. Applications for these three requests begin with the city’s zoning staff. They work with the applicant, explaining regulations under the ordinance, and adjusting the applications if necessary to make them compliant.

They work with the applicant, explaining regulations under the ordinance, and adjusting the applications if necessary to make them compliant. Usually, rezoning and conditional use permit applications are forwarded to the planning commission. The commission is an advisory board of residents who reviews applications to determine if the request complies with the ordinance and the comprehensive plan.

After the review, the commission makes a recommendation to the city council, and the council approves or disapproves. In the case of variance requests, the staff sends a recommendation to the board of zoning adjustment after the review.

So, how courts examine zoning decisions? Zoning decisions can be legislative and administrative. Legislative decisions apply to the community as a whole and not only to an individual property, whereas administrative decisions impact only a single property or individual.

Although there are many factors in granting a conditional use permit, the zoning authority will usually determine whether or not a proposed conditional use will materially alter the neighborhood, and if the change has a positive impact.

Even if the application for conditional use is rejected, the property owner may still have an opportunity to appeal the decision. So, if you’re considering the purchase of property, but know it doesn’t correspond to the city’s zoning ordinance, it might be best to get legal advice. A local attorney familiar with conditional use permits and zoning laws can help with the application and possible appeal process.

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